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Report No. 42

16.21. Section 304A and quality of negligence.-

Section 304A deals with homicide by a rash or negligent act. That the negligence mentioned in the section is not of the same type as in civil disputes has been made clear by judicial decisions. In civil cases, courts insist on a maximum standard of care, while criminal courts require minimum care. If the minimum care is taken, then the criminal courts would acquit the accused. If was suggested that this judicial interpretation should be embodied in the section, e.g., by adding the words 'so as to indicate a want of due regard for human life.

16.22. History of section.- The provision in Macaulay's Draft Penal Code was as follows.-

"304. Whoever causes the death of any person by any act or any illegal omission, which act or omission was so rash or negligent as to indicate a want of due regard for human life, shall be punished with imprisonment of either description for a term which may extend to two years, or fine, or both."

This clause was inadvertently or otherwise, left out in the final draft. The present section 304A was subsequently inserted, at the instance of the then Law Member, Sir James Stephen, by Act 25 of 1870. It was stated in the Statement of Objects and Reasons.-

"The Code, as it stands, contains no adequate provision for the punishment of what English lawyers call manslaughter by negligence. This was provided for in the draft Code, section 304, and the present Bill supplies the omission".

16.23. Meaning of 'negligence'.-

The connotation of 'negligence' in relation to manslaughter was explained by Lord Hewart, C.J.1, as follows.-

"In expounding the law to juries on the trial of indictments of manslaughter by negligence, judges have often referred to the distinction between civil and criminal liability for death by negligence.......In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of the standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In the criminal court, on the contrary, the amount and degree of negligence are the determining questions.

In explaining to juries the test they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment......"

1.R. v. Bateman, (1925) 19 Cr App Rep 8 (10).

16.24. No clarification necessary.-

In this connection, we also noted that sections 336 and 357 refer to acts done "so rashly or negligently as to endanger human life or the personal safety of others". But obviously these or similar words would not be adequate or appropriate for the purposes of section 304A. We find it difficult to devise a satisfactory form of words which, while giving effect to the concept of "criminal negligence", could be regarded as sufficiently expressive and simple. Judicial decisions have fully explained the scope and content of the section and on the whole, it seems best not to make any change in the wording.

16.25. Punishment inadequate.-

We are, however, of the view that the present maximum punishment for the offence is inadequate, and should be increased. This is desirable, in view of the greater importance which this offence has assumed since the section was inserted due to the wide use of fast moving mechanically propelled vehicles and the frequency in the commission of the offence, accompanied by callousness of the offender towards the victim; often there are cases tried under this section which are very near to culpable homicide and deserve a severe sentence.

16.26. Opinions received.-

We may note that in the views expressed on our question as to the quantum1 of punishment under the Code, there has been a strong demand for increase in the punishment for offences under this section. The suggestions vary from three years to seven years. There is also a suggestion to increase the period to seven years if more than one death has been caused. A Presidency Magistrate referred to a case where 17 fatalities occurred in a house collapse, owing to non-repair of the house by the landlord, and to another where three deaths had been caused by the negligence of the hospital staff.

1.Question 5 of the Questionnaire.

16.27. Maximum punishment to be five years.-

After taking into account our proposal to fix the maximum punishment for culpable homicide not amounting to murder at ten years, we recommend that the maximum punishment for causing death by negligence may be half that period, namely, five years.

16.28. Eulogy of murder.-

We examined the question whether it would be desirable to penalise eulogy of murder1. We think that such a provision may lead to difficulties; for example, where there is some apparent moral justification for the particular murder, a prosecution may be embarrassing. Further, killing in private defence may, sometimes technically amount to murder, if the right of self-defence is grossly exceeded. Hence, there are risks involved in the proposed amendment. So long as an act of approval of an offence does not amount to actual incitement to repeat the offence approved, there is no need to have a penal provision.

1.Compare Article 213, Argentina Penal Code, which provides that anybody who publicly, by any means, extols the commission of any crime or any person sentenced therefor, shall be punished by jailing from one month to one year.

16.29. Sections 305 and 306.-

Sections 305 and 306 relate to abetment of suicide. Some countries take a milder view of this offence in two special situation.-(i) suicide pacts; (ii) abetment of suicide for purposes which are not selfish. Thus, the Penal Code of Denmark provides1 that "any person who assists some other person in committing suicide shall be liable to a fine or to simple detention", and "if such an act of assistance is committed for reasons of personal interest, the penalty shall be imprisonment for any term not exceeding three years".

We have referred2 earlier to the provision in the Swiss Penal Code which requires "selfish motives" to be established for a person to be severely punishable for aiding suicide. We are of the view that no such special provision is necessary. The question of punishment may be left to the discretion of the Court, which can take into account all the circumstances in which the suicide was abetted by the offender.

1.Section 240, Penal Code of Denmark.

2.Para. 16.15, above.

16.30. Sections 307 and 308 to be revised.-

Sections 307 and 308, which deal with attempt to commit murder and attempt to commit culpable homicide not amounting to murder, have been considered in a previous Chapter, and a revision of both the sections has been proposed1.

1.See para. 5.55, above.

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